Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 4, 2022, in Extendicare Lynde Creek Retirement Residence and United Food & Commercial Workers Canada, Local 175, Arbitrator Stephen Raymond upheld a retirement home’s mandatory vaccination policy as a reasonable workplace rule consistent with the collective agreement, the Occupational Health and Safety Act (OHSA) and the Retirement Homes Act, 2010 (RHA).1 Notably, Arbitrator Raymond made this finding despite the government of Ontario’s and other public health authorities’ recent reduction or elimination of vaccination and other COVID-19-related requirements for staff, contractors, and visitors in retirement homes, long-term care homes, and other facilities and venues (Reductions and Eliminations). It is also notable that Arbitrator Raymond found it reasonable that the policy defines “full immunization/full vaccination” (Full Immunization) as requiring all booster vaccinations Health Canada recommends from time to time and in the future.
The retirement home’s vaccination policy was announced on August 26, 2021, and became effective on October 12, 2021. Subject to any accommodation requirements under the Human Rights Code, the policy requires:
- All newly hired employees to be fully immunized/vaccinated as a condition of employment; and
- All existing employees to be fully immunized/vaccinated from October 12, 2021.
Pursuant to the policy, Full Immunization requires all booster vaccinations Health Canada recommends from time to time and in the future. Employees who are not fully vaccinated in compliance with the policy are placed on an unpaid leave of absence; if they persist in not being fully vaccinated, they “may be subject to additional corrective action up to and including termination of employment,” which action was agreed by the parties to be subject to review under the collective agreement’s just cause standard.
As they desired an expedited decision, the parties asked the arbitrator to provide a “bottom line award.” They also asked him to consider the policy in the context of Full Immunization.
Arbitrator Raymond decided that the policy had been and remained a reasonable workplace rule, consistent with the collective agreement, the OHSA, the RHA and the related regulations and requirements, and the relevant authorities, even in the context of the Reductions and Eliminations, and “irrespective of whether or not the Employer is choosing at any given time to conduct rapid antigen or PCR testing.” The arbitrator also determined that Full Immunization was and continued to be a reasonable workplace rule consistent with all collective agreement, statutory and other requirements. Finally, Arbitrator Raymond found that, as agreed by the parties, additional corrective action or termination of employment will be subject to review under the just cause standard.
Bottom Line for Employers
Extendicare is a significant award for the retirement home and long-term care sectors. It suggests that in the context of such homes where care is provided to the elderly and immunocompromised, and despite the Reductions and Eliminations, mandatory vaccination policies will be considered reasonable and consistent with requirements under the collective agreement and applicable statutes. The award confirms, however, that the initial consequence for an employee’s non-compliance with such a policy should be placement on unpaid leave rather than termination of employment.
Extendicare suggests that it is likely that the elimination or loosening of COVID restrictions will not create barriers to the implementation of vaccination policies more broadly than in retirement and long-term care homes, and that all employers will be considered to be acting reasonably should they require their employees to get all Health Canada recommended boosters, now and in the future.
1 Arbitrator Stephen Raymond also upheld a mandatory vaccination policy in Extendicare Lynde Creek Retirement Residence and United Food & Commercial Workers Canada, Local 175.